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The Suburban Mobility Authority for Regional Transportation (SMART) can reject an anti-Islam bus side ad, the 6th U.S. Circuit Court of Appeals ruled, reversing a district court injunction against the authority’s decision.

The AFDI wanted to put this anti-Islam ad on SMART buses. Source: AFDI

The court said the ad was different in nature than a pro-atheism ad that was accepted by the authority, a distinction which allowed the court to find it didn’t discriminate against the American Freedom Defense Initiative’s anti-Islam ad.

SMART has a policy against accepting political advertising on its buses. The AFDI’s ad read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.”

The AFDI claimed it was discriminated against because SMART had previously accepted advertising from an atheist group. The atheist ad read: “Don’t believe in God? You are not alone. DetroitCoR.org.”

Judge John Rogers, joined by Judge Raymond Kethledge and USDC Judge Algenon Marbley, looked beyond the ads to the websites they advertise to find a clear distinction between the two.

A visit to the website listed in the Fatwa advertisement, RefugeFromIslam.com, confirms our understanding of the
advertisement’s message. The website is a blog that contains postings about both AFDI and an organization called “Stop Islamization of America.” RefugeFromIslam.com (last visited October 23, 2012). The site also refers to conferences about “Islamic Law in America,” accusations of threatened honor killings in the United States, and numerous other political issues.

The panel also discussed how political controversy over Sharia law has crept from state to state and found its way among GOP primary issues.

This contrasted with the nature of the atheism ad and website, the panel said.

The atheist advertisement could be viewed as a general outreach to people who share the Detroit Coalition’s beliefs, without setting out any position that could result in political action. The fatwa advertisement, however, addresses a specific issue that has been politicized. Two hypothetical changes to the advertisements demonstrate the difference. Had the atheist advertisement read, “Being forced to say the Pledge of Allegiance even though you don’t believe in God? You are not alone. DetroitCoR.org,” the advertisement would likely be political. The hypothetical advertisement would address an issue that has been politicized—requiring atheists to recite “under God,” see, e.g., Myers v. Loudoun Cnty. Pub. Schools, 418 F.3d 395 (4th Cir. 2005)—and the advertisement would presumably not be permitted under SMART’s policies. Similarly, had AFDI changed its advertisement to read, without more: “Thinking of Leaving Islam? Got Questions? Get Answers,” SMART presumably could not ban the advertisement. These changes reflect differences in the two actual advertisements that a reasonable administrator, applying an objective standard, could identify.

The court ultimately found that the AFDI isn’t likely to succeed on the merits of its case against SMART and that the authority’s “reasonable, viewpoint-neutral limits” didn’t infringe on the group’s First Amendment rights.

The 6th U.S. Circuit Court of Appeals has upheld the dismissal of a Troy man’s malicious prosecution suit against the Oakland County Prosecutor and the City of Troy, because the prosecutor

Gerald Molnar was acquitted of sexually abusing his nine year old daughter. During the investigation, Molnar’s daughter told police that Molnar had touched her in a sexual way. However, both Molnar and his girlfriend both told Troy detective Janice Pokley that the charges were brought in retaliation for Molnar threatening to go to authorities because his ex-wife, Renee, allowed her brother, a convicted sex offender, to be around their daughter. Pokley was also told by the girlfriend that she was there at all times when he was with his daughter and the incident did not happen.

Pokley included the daughter’s statement, but not Molnar’s and his girlfriend’s statement, into her report to the Oakland prosecutor.

Molnar brought Section 1983 and 1985 claims against the defendants, arguing that the city and prosecutor falsely created probable cause.

The Sixth Circuit affirmed the district court’s dismissal, stating:

Molnar argues that Officer Pokely (1) fabricated probable cause and (2) failed to disclose exculpatory information. As evidence of these claims, he points to Officer Pokely’s failure to disclose in her police report that his girlfriend corroborated his statements and that Renee’s brother was a pedophile. However, what was excluded from Pokely’s police report is simply not material to resolving the issue of whose statements the state court relied on to establish probable cause. At the preliminary hearing, the Prosecutor called one witness, Elizabeth. Molnar, in rebuttal, called Renee, Pokely, and Allen. Even accepting Molnar’s allegation that Detective Pokely “knowingly supplied the magistrate with false information,” Darrah, 255 F.3d at 311, the state court did not rely on her testimony to establish probable cause. Rather, it bound him over for trial based on Elizabeth’s “very believable” testimony. Thus, Molnar’s reliance on Darrah is misplaced, because the state court relied on the victim’s testimony to establish probable cause.

This story was reported last week, but the Michigan Daily grabbed a copy of the briefs and included the plaintiffs’ arguments that they should be excluded from Proposal 2, Michigan’s anti-affirmative action statute.

The main plaintiffs in the case are the state of Michigan, University of Michigan, Michigan State University and Wayne State University.

In a brief written to the 6th Circuit Court, the universities stated that they wished to be removed from the lawsuit.

“Simply put, the universities do not belong in the case,” the brief reads. “The universities did not draft Proposal 2. They did not pass Proposal 2. They cannot change Proposal 2. They are not executive branch agencies charged with enforcing Proposal 2.”

I’m not a constitutional scholar by any stretch of the imagination, but this seems a lot like arguing with a police officer that you didn’t draft speed limit ordinances, didn’t pass them and can’t change them, so you shouldn’t have to abide by them.

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